Court of Appeals Opinions

Format: 11/22/2014
Format: 11/22/2014
Michael Lee Horton v. Brenda Kay Horton
W2014-00880-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Daniel L. Smith

This divorce action follows a thirty-three year marriage. Plaintiff Husband appeals the trial court’s property division, award of alimony in futuro to Wife, and award of attorney’s fees to Wife. We affirm.

Hardin County Court of Appeals 11/21/14
In Re Shaneeque M.
E2014-00795-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Tammy M. Harrington

This is a parental rights termination appeal brought by the mother. The trial court found clear and convincing evidence to support the grounds for termination and clear and convincing evidence that termination was in the child’s best interest. The mother appeals. We affirm.

Blount County Court of Appeals 11/20/14
Commercial Painting Company, Inc. v. The Weitz Company, LLC et al.
W2013-01989-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Kenny W. Armstrong

In this construction contract dispute, the trial court granted summary judgment in favor of the defendant general contractor as to all of the plaintiff subcontractor’s tort claims. The parties proceeded to trial on the remaining issues and judgment was awarded in favor of the subcontractor. Both parties raise numerous issues on appeal. Because we conclude that the trial court applied an improper standard in granting summary judgment, we vacate the order of summary judgment in favor of the general contractor. In addition, because the subcontractor’s tort claims may alter the remaining issues in this case, we decline to consider the remaining issues raised by the parties. Vacated and remanded.

Shelby County Court of Appeals 11/18/14
In Re: Cidney L.
W2014-00779-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Clayburn Peeples

Mother appeals the trial court’s termination of her parental rights. She argues that the trial court erred in holding that clear and convincing evidence established that she engaged in conduct exhibiting a wanton disregard for the welfare of the child prior to her incarceration and that termination was in the child’s best interest. We have determined that there is clear and convincing evidence in the record to support both of the trial court’s findings. We affirm.

Crockett County Court of Appeals 11/18/14
Centimark Corporation v. Maszera Company, LLC.
E2013-02689-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Daryl R. Fansler

This suit arises as a result of a contract to install a roof on a commercial building. The building’s owner argued that the roof has leaked since its installation and that the roofer would not or could not satisfactorily repair it. The roofer asserted that the roof had experienced some leaks but that all had been repaired. The roofer alleged that it had performed according to the contract and sued for total payment. The owner of the building alleged, inter alia, that the roofer breached the contract by failing to provide adequate materials and proper workmanship and filed a counter-complaint. The trial court issued its ruling in favor of the building owner on the counter-complaint and awarded $220,374.96 in damages. The court dismissed the roofer’s suit. The court also dismissed the building owner’s other claims against the roofer for deceptive business practices and for filing an improper lien. Both sides appeal. We affirm.

Knox County Court of Appeals 11/18/14
Michael L. Schwartz, et al. v. Diagnostix Network Alliance, et al.
M2014-00006-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Carol Soloman

This case involves an agreement between a distributor of medical tests and a healthcare consultant. The agreement provided that the consultant would earn a commission on sales of the medical test that he solicited on behalf of the distributor. After several months, the distributor terminated the agreement. The consultant filed a lawsuit against the distributor. The consultant alleged that the distributor breached its duty of good faith under the contract by terminating the agreement in order to avoid paying commissions and by failing to provide an adequate sales force to assist the consultant in making sales. The consultant alleged that the distributor breached a separate verbal contract for the development of marketing materials. The consultant also alleged that the distributor fraudulently misrepresented its intent to compensate the consultant for his efforts in soliciting orders for the medical test. The trial court dismissed the consultant’s fraud claim and granted summary judgment to the distributor on each of the remaining claims.  We affirm the judgment of the trial court with respect to the consultant’s breach of good faith and fraud and misrepresentation claims. However, we find that the trial court erred in granting summary judgment on the consultant’s claim that the distributor breached a separate verbal contract. We also vacate and remand the trial court’s award of attorney’s fees for reconsideration after issues related to the verbal contract are resolved.

Davidson County Court of Appeals 11/17/14
Ronald T. Daugherty v. Lavada J. Doyle, et al
M2013-02509-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Russell T. Perkins

A shareholder in a closely-held family business brought this action pursuant to Tenn. Code Ann. § 48-26-102(b) to inspect the company’s accounting records. The trial court determined that the shareholder’s request was made in good faith and for a proper purpose. On appeal, the defendants assert that the trial court erred in finding that the shareholder’s request was made in good faith and in awarding him his attorney fees and the expenses he incurred in hiring a forensic accountant. We reverse the trial court’s decision to award the shareholder the expenses he incurred for the forensic accountant, but remand for a determination of an award based on the accountant’s fees concerning testimony about whether the records requested by Mr. Daugherty were accounting records. In all other respects, we affirm the decision of the trial court.

Davidson County Court of Appeals 11/17/14
In Re: J.C.B.
M2014-01112-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sammie E. Benningfield, Jr.

This appeal arises from a decision by the Juvenile Court for White County terminating Mother’s parental rights to her son. Child was placed into emergency custody by the Tennessee Department of Children’s Services (“DCS” or “the Department”), pursuant to Tenn. Code Ann. § 37-1-113, when he was two months old after law enforcement officials found a methamphetamine lab in the living room of Mother’s apartment while Child and Father were present. The juvenile court issued a protective custody order and appointed a guardian ad litem for Child. Between that time and the termination hearing, three permanency plans were created. Mother was incarcerated multiple times and failed to complete any of the requirements of her permanency plans. DCS tried to schedule visitation for Mother, provide her information about rehabilitation programs, keep in contact with her, and administer drug screens,but it had difficulty due to Mother’s repeated incarcerations and failure to keep in contact with DCS. DCS filed a petition to terminate Mother’s parental rights. The court terminated Mother’s parental rights; held that the requirements of the permanency plans were all reasonable; and held that DCS made reasonable efforts to assist Mother in complying with the requirements of the plans. We affirm the decision of the juvenile court.

White County Court of Appeals 11/17/14
Barbara M. Hicks Vick v. Brandon P. Hicks
W2013-02672-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

This appeal arises from the trial court’s dismissal of Appellant Brandon Hicks’ (“Husband”) petition to terminate his alimony obligation. After his ex-wife, Appellee Barbara Hicks Vick (“Wife”), remarried, Husband petitioned the trial court for relief under Tennessee Code Annotated § 36-5-121(g)(2)(C). Wife moved to dismiss Husband’s petition, arguing that the  parties’ marital dissolution agreement (“MDA”) contained a non-modification clause with respect to Husband’s alimony obligation. The trial court granted Wife’s motion, and Husband filed a timely appeal to this Court. We affirm.

Shelby County Court of Appeals 11/17/14
In Re Kendal A.
W2014-00638-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge W. Michael Maloan

The trial court terminated Mother’s parental rights on the grounds of abandonment by an incarcerated parent and severe child abuse, and found that termination of Mother’s rights was in the child’s best interest. We affirm.

Obion County Court of Appeals 11/17/14
Brenda Y. Hannah v. Sherwood Forest Rentals, LLC, et al.
E2014-00082-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge O. Duane Slone

This appeal results from the grant of summary judgment to the defendants in a premises liability action. The plaintiff fell while descending a set of wooden stairs leading to a rental cabin. The plaintiff filed the instant action against the owners of the cabin and the rental company, which manages and maintains the cabin. In granting summary judgment to the defendants, the trial court determined that there were no genuine issues of material fact by which a reasonable jury could find that either defendant had actual or constructive notice of any allegedly defective condition existing that caused or contributed to the plaintiff’s fall. The plaintiff has appealed. Discerning no error, we affirm.

Sevier County Court of Appeals 11/17/14
In Re Austin A. et al.
E2014-00910-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Arnold

This case concerns the termination of the mother’s parental rights. We have determined that the record contains clear and convincing evidence to support terminating the mother’s parental rights on the ground relied upon by the trial court. The record further supports the conclusion that terminating the mother’s parental rights is in the children’s best interest. Accordingly, we affirm the findings of the trial court.

Washington County Court of Appeals 11/17/14
In Re Michael A.C., Jr.
E2014-01268-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Larry Michael Warner

This is a parental rights termination appeal brought by the incarcerated biological father. The trial court found clear and convincing evidence to support the ground for termination and clear and convincing evidence that termination was in the child’s best interest. The father appeals. We affirm.

Cumberland County Court of Appeals 11/17/14
McCurry Expeditions, LLC, et al. v. Richard H. Roberts
M2014-00526-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Jim T. Hamilton

The case concerns the imposition of sales and use tax on a luxury motor home stored in Tennessee byan out-of-state corporation.The trial court granted summary judgment to the tax-payer corporation, finding that the imposition of sales tax was not authorized by statute and was not consistent with the Commerce Clause of the United States Constitution. We reverse and remand.

Giles County Court of Appeals 11/14/14
In Re: Estate of Edward Stephen McRedmond
M2013-02582-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Russell T. Perkins

This appeal involves a longstanding dispute among ten siblings with respect to a family business. Afteryears of litigation,the parties agreed to dissolve the corporation that operated the family business and sell its assets. A receiver was appointed and authorized to sell the assets. The three defendant-siblings in this case placed the highest bid for the assets, and the trial court approved the sale to those three siblings. Prior to the closing of the sale, the three siblings formed a new corporation and assigned their right to purchase the assets to the newly formed corporation. Accordingly, at closing, the receiver conveyed the assets directly to the new corporation. The new corporation began conducting business just as the family business had done in the past. One of the plaintiff siblings formed another corporation and went into direct competition with the corporation that purchased the assets of the family business. The three individual siblings filed a counterclaim against the competing sibling, alleging intentional interference with business relations, breach of fiduciary duty, and that they lost the benefit of their bargain. Theyalso sought injunctive relief against the competing sibling. Neither of the newly formed corporations was made a party to the proceedings. Following a three-day bench trial, the trial court awarded compensatory damages to each of the three siblings and entered a permanent injunction against the competing sibling. The competing sibling appeals the trial court’s order on numerous grounds. For the following reasons, we reverse the trial court’s order, vacate the injunction, and dismiss the counterclaim.

Davidson County Court of Appeals 11/14/14
The Estate Of Cheryl Lynn Quinn, By Personal Representative, William Paul Quinn v. Thomas Henderson Et Al.
E2013-02398-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David R. Duggan

This is an appeal from a grant of summary judgment to the defendant governmental entities. The decedent, Cheryl Lynn Quinn, died from smoke inhalation following a house fire allegedly set by her ex-boyfriend. Her estate filed a wrongful death action against the exboyfriend as well as the Blount County Sheriff’s Department (“Sheriff’s Department”), the Blount County 911 Communication Center (“911”), and the Blount County 1 Fire Protection District (“Fire Department”). The claims against the alleged arsonist and the Sheriff’s Department were nonsuited, and the trial court granted summary judgment to 911 and the Fire Department. Plaintiff has appealed. Discerning no reversible error, we affirm.

Blount County Court of Appeals 11/13/14
In Re Abigail M., Et Al.
E2014-01825-COA-R3-JV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Robert D. Philyaw

This appeal is from a custody order entered in a dependency and neglect proceeding in the Juvenile Court for Hamilton County (“Juvenile Court.”). Because we have no jurisdiction to hear an appeal from a custody order entered in a dependency and neglect case, this appeal is dismissed.

Hamilton County Court of Appeals 11/13/14
In Re Alexus F.
E2014-00723-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case filed by the Tennessee Department of Children’s Services. The trial court found that clear and convincing evidence existed to terminate Father/Appellant’s parental rights on the grounds of abandonment and substantial noncompliance with the requirements outlined in the permanency plans. The trial court also found, by clear and convincing evidence, that termination of the Father’s parental rights was in the child’s best interest. Father appeals. We affirm the termination of Father’s parental rights on the sole ground of substantial noncompliance with the permanency plan. Affirmed and remanded.

Hamilton County Court of Appeals 11/13/14
Metro Government of Nashville & Davidson County v. Tennessee Department of Labor & Workforce Development, et al
M2013-01551-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

A substitute teacher filed a claim for unemployment benefits with the Tennessee Department of Labor and Workforce Development; utilizing the partial unemployment regulation to determine the claimant’s eligibility for benefits, the Department approved the claim and awarded benefits. The Board of Education filed a petition for review, contending that the teacher was not entitled to benefits because she was still employed and because she had refused work assignments which she had been offered; the trial court utilized the regulation applicable to part total unemployment and affirmed the Department’s decision. We affirm the holding that the part total regulation was the proper regulation to be used in determining the claimant’s eligibility; because the Department did not make findings as to certain statutory factors in determining claimant’s eligibility for benefits, we vacate the decision and remand the case for further proceedings.

Davidson County Court of Appeals 11/12/14
Rafia N. Khan, Individually, And In Her Capacity As Trustee Of The Rafia N. Khan Irrevocable Trust v. Regions Bank
E2010-01837-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Daryl R. Fansler

This appeal arises from a disputed arbitration award. Rafia N. Khan (“Mrs. Khan”), individually, and as Trustee of the Rafia N. Khan Irrevocable Trust (“the Trust”) sued Regions Bank (“the Bank”) in the Chancery Court for Knox County (“the Trial Court”) alleging that the Bank had committed unfair acts under the Tennessee Consumer Protection Act (“the TCPA”) by refusing to release a lien on property owned by the Trust and pledged to secure the Khans’ line of credit with the Bank. Mrs. Khan’s husband previously had withdrawn $40,000 on the joint line of credit, a move Mrs. Khan opposed. Per the loan documents, the parties by an agreed order entered into arbitration. The arbitrator Robert P. Murrian (“the Arbitrator”), in a lengthy and detailed final award, found that the Bank was not liable for any unfair acts under the TCPA, that Mrs. Khan was not personally liable for the $40,000 loan made by the Bank to Mr. Khan, and that Mrs. Khan was not entitled to an order in the arbitration requiring the Bank to release the lien on the property. The Trial Court vacated the arbitration award. The Bank appeals. We hold, inter alia, that the Arbitrator rendered a sound, well-reasoned decision and award, and the Trial Court erred in vacating the award. We reverse the Trial Court.

Knox County Court of Appeals 11/12/14
Ted H. Lowe, III et al. v. Joseph M. Brown et al.
E2013-00421-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Dale C. Workman

This action arose over the unfulfilled terms of a condominium lease entered into between the defendant lessee and the lessor, whose estate initiated this action following the death of the lessor. A judgment in the amount of $16,120.36 was originally entered in favor of the estate by the Knox County General Sessions Court. The lessee appealed to the Knox County Circuit Court for a de novo proceeding, and the decedent’s personal representatives were substituted as parties for the estate. Following a non-jury trial, the circuit court entered a judgment in favor of the personal representatives in the amount of $15,882.28. The lessee appeals. Discerning no reversible error, we affirm.

Knox County Court of Appeals 11/10/14
Greg Willet, As Executor Of The Estate Of Walter Taeubel v. Lucy Adelaine Taeubel
E2014-00364-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge L. Marie Williams

This appeal involves a petition to terminate alimony in futuro. Several years after the parties’ divorce, former husband became completely disabled. Former husband filed a petition to terminate his alimony obligation based on a substantial and material change in circumstances. The trial court granted former husband’s petition. Former wife appeals, contending that the trial court erred in concluding former husband established a substantial and material change in circumstances. Discerning no error, we affirm.

Hamilton County Court of Appeals 11/10/14
State of Tennessee v. Courtney Eugene Dukes
E2014-00154-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Don W. Poole

The Defendant, Courtney Eugene Dukes, appeals the Hamilton County Criminal Court’s revoking his probation and ordering his effective four-year sentence into execution. The Defendant contends that the trial court abused its discretion by revoking his probation. We affirm the judgment of the trial court.

Hamilton County Court of Appeals 11/07/14
David Michael Williams, et al v. Timothy Wayne Smith
M2013-02606-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amy V. Hollars

This appeal arises from an underinsured motorist coverage claim that hinges on the validity of a choice of law provision in the insurance policy. Plaintiffs were involved in a car wreck in Tennessee while driving a vehicle they borrowed from North Carolina residents.Although the borrowed vehicle was owned by North Carolina residents, the car owners had elected an insurance policy with a Missouri choice of law provision because their daughter principally used the car in Missouri where she attended college. At issue in this appeal is whether the law of Missouri or North Carolina controls.If Missouri law controls,there is no underinsured motorist coverage; if North Carolina law controls, there is coverage. The trial court found that the Missouri choice of law provision was valid and enforceable because the choice of law provision was not contrary to a fundamental policy of North Carolina. We affirm.

Putnam County Court of Appeals 11/06/14
Gregory Lee Boggs Et Al v. Dinah K. Rhea
E2013-02859-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas J. Wright

Gregory Lee Boggs and Lisa Danielle (Pickens) Boggs (“Plaintiffs”) sued Dinah K. Rhea (“Defendant”) with regard to a motor vehicle accident that occurred in May of 2010 in Washington County, Tennessee. Defendant admitted responsibility for the accident and the case was tried before a jury solely on the issue of damages. After trial the Circuit Court for Greene County (“the Trial Court”) entered judgment on the jury’s verdict finding and holding that Plaintiffs were not entitled to any damages. Plaintiffs appeal to this Court raising issues concerning the jury’s verdict, denial of their motion for additur or a new trial, and claimed improper statements by defense counsel in his closing argument. Defendant raises an issue on appeal with regard to the Trial Court’s denial of her motion for discretionary costs. We find and hold that the record on appeal contains material evidence to support the jury’s verdict and that there are no other reversible errors related to Plaintiffs’ issues. We further find and hold that Defendant is entitled to an award of discretionary costs, and we remand to the Trial Court for a determination of the appropriate amount of discretionary costs. We affirm as modified.

Greene County Court of Appeals 11/06/14